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The Quintessential Special Interest Law: Open Range

In Idaho, across most of the state, cows have the right of way. If you’re driving on the highway, and hit a cow in the middle of the road, day or night, foggy or clear, not only is the cow’s owner not liable for the damage to you or your car; you’re liable to the rancher for the value of his cow.

A Black Angus is pretty much invisible at night; a Hereford in the fog or rain is nearly as bad. At the 60 MPH that’s legal on most Idaho back roads, a collision isn’t going to do the cow, your car or you any good at all. But the rancher’s failure to keep his cattle confined and off the road is never, ever the rancher’s fault. Idaho Code 25-2118 states that

No person owning, or controlling the possession of, any domestic animals running on open range, shall have the duty to keep such animal off any highway on such range, and shall not be liable for damage to any vehicle or for injury to any person riding therein, caused by a collision between the vehicle and the animal.

Not all of the state is “open range.” There are “herd districts” where cattle are supposed to be kept fenced in. But an animal that wanders into a herd district from open range is treated as if it were on open range. Even the Interstate Highways, outside of herd districts, are open range. The speed limit on interstate highways is 80 mph. Good luck to cattle and drivers.

As a matter of risk management, the open range laws are indefensible. They are special interest legislation for the benefit of one industry at the expense of the safety of the rest of us.

In the 1960s, back when you drove from Fairbanks to Denali National Park through Paxson, WC came around a curve by the Fort Greely gate in a thunderstorm. A motorcyclist had hit a bison at high speed. Not to put too fine a point on it, but there were pieces of everything spread along a couple hundred yards of the Richardson Highway. We’ve all known or seen moose-car collisions. WC understands, at a visceral level, the hazards of large mammals and fast-moving vehicles.

But the moose population of the part of Alaska with roads is relatively modest, and the number of bison smaller still. Fencing moose, bison and Alaska’s other charismatic megafauna is pretty impractical.

There are and estimated 2,190,000 cattle in Idaho, 1.36 cows for eery human. They are everywhere, including in the middle of roads. Sometimes WC thinks their preference is for the middle of the road. And more than half of Ada County, of which Boise is a large part, is open range.

Collisions cattle-vehicle collisions happen in Idaho all the time; even to law enforcement.

Laws that were enacted when automobiles traveled at 15 mph don’t have much relevance in an age of superhighways. As you might imagine, the open range laws don’t always sit well with farmers, either. A herd of cattle can do mortal damage to an alfalfa field, and it’s damned hard to fence cattle, grazing on dry desert scrub, away from an adjoining irrigated crop field.

One of these days a school bus full of little scholars is going to collide with a angus bull at 55 mph and the laws will finally get changed. In the meantime, cowboy law, the law west of Pecos, firmly entrenched in the 19th Century, puts the rights of a handful of ranchers ahead of everyone else.